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The ethics of ownership 3.1postc

Presentation on The Ethics of Ownership with reference to Metal Detecting. Paper given to the Conference on Portable Antiquities at the University of Newcastle on 13th March 2010, with additional input following conference discussion.

A Finders titleHave you ever found something on your land that is not your property? A lost watch, money or even an item of clothing? There are many situations where maybe the true owner of that item is not known or unable to locate, and where this occurs other people may have a claim to that property.There are many people who may be entitled to claim objects found in or on the surface of the land, these include, The True owner of the object, The Finder of the object, A person in occupation of the land ( living on the land), A person with a superior right to the land (I.e. Landlord) or the Finder’s employer. Note that the true owner of the object has a better claim over the found property than anybody else, as seen in the case of Moffatt V Kazana 1969 If the true owner of the object cannot be found then the question of who has the strongest claim the object depends on where the property was found.Objects found in or attached to the landIf the true owner of the property discovered is unidentifiable or unable to be found then the person In lawful possession of the land is entitled to the item that was found in the land or attached to it. This is even the case where the landowner was unaware of the object before it was found and never showed any intention to control the land .The courts stated in Waverley BC v Fletcher 1996, the three reasons why items found below the surface of the land should be treated differently from those found on the property. Firstly, An object in land should be treated as an integral part of that land against all but the true owner so if the finder of the item is to remove it from the land they would be doing so without a license or permission and therefore become a trespasser. Secondly, Removal of an object in or attached to land would normally involve interference with the land and may damage it. Finally, it is unlikely that the true owner of the object in the ground would be there to claim the property, where as if the item was found on the soil it is likely to have been recently lost and possible the true owner may return to find it. Examples of items found that have undertaken court proceedings in the past include;Rings found in mud at the bottom of a pool (seen in the case of South Staffordshire Water Co v Sharman [1896]), A prehistoric boat found 6 feet beneath the surface (noted in Elwes v Brigg Gas Company (1886) ) and A gold brooch found 9 inches underneath the surface of a public park (basis of the case of Waverley BC v Fletcher [1996]) Items found on top of the land itselfThe finder of property generally has the right to any object which has been lost. A right which is enforceable against everyone except for the true owner of the property.The owner of the land where the object was found will only take priority over the finder where the landowner had expressed his intention to control the land and anything found on it prior to the discovery of the lost property. The courts in the case of Parker explained that if the true owner where ever to come forward he/she would have the overall best claim to the lost property. The judge stated the following principles.The finder of a lost object will have no rights over it unless it has been abandoned or lost and then taken into the control of the person who found it. However, the finder of the lost object will have very limited rights over the property if he/she takes control of the object with dishonest intention or whilst trespassing on the land. The finder of the lost property does not have any absolute ownership over the objects but does gain the right to keep it against all people other than the true owner or person claiming through the true owner or someone who can prove prior right to the lost property.Unless previously agreed, the person who finds the lost property during his employment on the land and then takes into his care and control does on behalf on his employer who then gains the finders rights and excludes the rights of the actual finder.The person who has the finders rights has an obligation to take all reasonable steps in the given circumstances to find the true owner and their and state the current whereabouts of the item and care for it in the meantime.The occupier of the land has more rights than those of a finder over any items found in or attached to that land. An occupier of a building has more rights than the finder of any lost property found upon or in the building but not those found attached to it, only If before the object was found his intention was made clear that he was to exercise control over the building and the things which may be upon or in the building. Note that a distinction is to be drawn between situations when the object is found by a person who is on the land lawfully and where it is found by a trespasser. If the finder is a trespasser, or has a dishonest intention, then the occupier of the land (and, of course, the true owner of the object) will have a better claim ,Otherwise, the fact of possession confers on the finder a possessory title which is good against other The Treasures Act 199Objects found on my land An object which falls within the statutory definition of treasure belongs to the Crown. The Treasure Act 1996 applies to items of gold or silver with a 10% content of precious metal provided that they are at least 300 years old.Read more: http://www.inbrief.co.uk/objects-found-on-land.htm#ixzz0hdCIjEBO

The ethics of ownership 3.1postc

1.
The Ethics of Ownership<br />Richard Thomas<br />

2.
Archaeology vs Metal Detecting<br />Current debate marked by conflict, not co-operation<br />Feels a bit like this.....<br />But at its heart is a set of important questions about the Ethics of Ownership<br />

3.
Owning the right to dig<br />Metal detecting simply the structured searching of land by or on behalf of the owner or his/her agent<br />In a free society, a landowner has the right to investigate and dig on his/her land in whatever way s/he wishes, unless there is an overwhelming reason not to, such as the presence of a scheduled monument<br />S/he may therefore invite anyone to do so on his or her behalf<br />This right is absolutely fundamental to land ownership, and is unlikely to be withdrawn<br />

4.
Owning the right to dig<br />Recent legislation towards increased community use:<br />Right to Roam (Countryside and Rights of Way Act 2000)<br />Village Green registration (Commons Act 2006) (House of Lords, Sunningwell Village Green)<br />“The Crown Estate generally seeks to encourage access over, and responsible use of, the foreshore and as a result our consent for non-commercial metal detecting on the foreshore will not incur a charge.”<br />

5.
The Five properties of ownership<br />Five properties of an Artefact, each of which can be separately owned:<br />Title<br />Financial Value<br />Contextual information (Archaeological context)<br />Historical information<br />Delight in discovery<br />

6.
Ownership of Title<br />This is rarely in dispute, and is covered by law.<br />Unless it is Treasure, or it has been recently lost by someone who can prove title, it belongs to the land owner<br />The land owner has absolute right to determine its disposal<br />There are ethical constraints on disposal of title<br />

7.
Ownership of Financial Value<br />Again, rarely in dispute<br />Separate from legal title to the artefact<br />Usually agreed by reference to collector market<br />In the absence of superior claim, Landowner has right to full financial value<br />Custom and practice suggest 50% split between Landowner and Finder (MD)<br />

8.
Ownership of Contextual Information<br />Distinct from Title or Financial Value, this is illumination shed by the Artefact on the wider context of the find<br />Properly belongs to the community, not the landowner or finder, and is part of ‘The Common Good’<br />It is also where many of the conflicts often begin<br />

9.
Ownership of Contextual Information<br />Those who oppose structured searching of land by the landowner argue that it can destroy contextual information<br />There may be partial destruction of contextual information on occasions <br />– all excavation is planned destruction<br />But this is usually outweighed by several factors<br />

10.
Ownership of Contextual Information<br />Most MD finds have little or no contextual information to give <br />Usually isolated finds. Single lost coins, crotal bells, and in my case mostly junk!<br />Digging usually only in top few inches of soil.<br />However, if the artefact is associated with an important site, the potential disturbance caused by discovery often outweighed by the find itself.<br />Which most likely would not otherwise have been found, but destroyed or seriously degraded.<br />

11.
Ownership of Historical Information<br />This is distinct from Title, Financial Value, or Contextual information<br />It is a property of the artefact itself, rather than the illumination shed by the artefact on the site or other associated finds<br />A single medieval coin may have no contextual archaeological information to give – it may be an isolated, unassociated find<br />But it may have considerable historical information to give that relates to the local area or community. E.g., Unknown local moneyer<br />

12.
Ownership of Historical Information<br />Historical information properly belongs to the local community, as part of ‘The Common Good’<br />Whilst in practice responsibility for reporting and recording both contextual and historical information is devolved to the finder, overriding ethical responsibility for ensuring reporting and recording rests with landowner<br />

13.
Ownership of Historical Information<br />Ethical responsibility for providing an agreed means of reporting and recording both contextual and historical information rests with the community, as part of the Common Good<br />If the artefact remains in private ownership then this responsibility becomes even greater<br />Further work needs to be done to achieve a single, agreed reporting and recording scheme x<br />

14.
Ownership of delight in discovery<br />Distinct from title, financial value, contextual or historical information<br />Less tangible, but no less real<br />Owned by all interested parties<br />Finder<br />Landowner<br />Local and wider community<br />

15.
Ethical responsibilities attached to each property of ownership<br />

18.
Landowner’s Responsibilities<br />Depending on the nature of the artefact, allowing it to be kept by finder, by local family, by local school or community group<br />If of limited value, then local community ownership may better serve the common good than locking it away in a storage box in a museum<br />A child, taking the artefact to show his friends, may do more for archaeology than museum<br />

19.
Titleholder’s Responsibilities<br />To ensure that the artefact is kept together with its provenance<br />If in a private collection, to ensure that on the death of the owner the artefact and its provenance are secure and location is known<br />(This slide added following discussion)<br />

20.
Possible improvements<br />Structured Community Involvement?<br />Community displays of portable antiquities<br />A single reporting / recording scheme?<br />Privately or jointly run, grant aided<br />Greater recognition of the contribution made by structured searching of land, and the consequent discoveries of important sites<br />Recording of location of artefact. ‘Where is it now?’ (This point added after discussion)<br />